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Courts’ Responses to the Covid-19 Crisis

The Brennan Center is compiling the formal policy responses of federal courts, immigration courts, and state courts to the Covid-19 public health crisis.

Last Updated: September 10, 2020
Published: March 19, 2020

This is part of the Bren­nan Center’s response to the coronavirus.

The Bren­nan Center is compil­ing the formal policy responses of federal courts, immig­ra­tion courts, and state courts to the Covid-19 public health crisis.

Thus far, courts’ responses vary substan­tially across juris­dic­tions, with policies ranging from carry­ing on busi­ness as usual to clos­ing court­houses entirely and suspend­ing in-person proceed­ings indef­in­itely. Even within the same juris­dic­tion, differ­ent court­houses and judges often have wide discre­tion to determ­ine which hear­ings must take place in person and which court person­nel must come to work.

Courts are quickly adopt­ing new policies and we will seek to update this page on a monthly basis.

Last Updated: 9/9/2020

Federal Courts

Supreme Court of the United States

On March 16, the Supreme Court of the United States post­poned oral argu­ments sched­uled through April 1. Beyond oral argu­ments, however, the Court pledged to continue the rest of its busi­ness as usual with some justices and employ­ees work­ing remotely. It declined to extend filing dead­lines.

Accord­ing to the Court, “The Court’s post­pone­ment of argu­ment sessions in light of public health concerns is not unpre­ced­en­ted.  The Court post­poned sched­uled argu­ments for Octo­ber 1918 in response to the Span­ish flu epidemic.  The Court also shortened its argu­ment calen­dars in August 1793 and August 1798 in response to yellow fever outbreaks.”

The Court initially declined to change filing dead­lines but exten­ded some dead­lines in a March 19 order.

On April 3, the Court post­poned its oral argu­ments sched­uled for the April session, and on April 13, it announced that it would hear 10 of the 20 previ­ously post­poned oral argu­ments by tele­phone in May. The Court provided a live audio feed of those argu­ments, avail­able here.

Offi­cial Sources:

Press Release (April 13): https://www.supremecourt.gov/publi­cinfo/press/press­releases/pr_04–13–20 

Order (April 3): https://www.supremecourt.gov/publi­cinfo/press/press­releases/pr_04–03–20

Order (March 19):
https://www.supremecourt.gov/orders/cour­torders/031920zr_d1o3.pdf

Press Release (March 16): https://www.supremecourt.gov/publi­cinfo/press/press­releases/pr_03–16–20

Federal District and Circuit Courts of Appeals

The 94 federal district courts and 13 circuit courts of appeals have respon­ded indi­vidu­ally to the crisis. Many district courts initially closed their doors to the public, post­poned jury trials and grand jury proceed­ings, and ordered that judges waive certain appear­ances if a defend­ant consents, or conduct them by phone where possible. By contrast, in other parts of the coun­try, some courts have made minimal or no changes to their oper­a­tions other than prohib­it­ing court­house access for persons with a recent history of inter­na­tional travel or possible Covid-19 expos­ure. The oper­a­tions of district courts, which rely more on in-person appear­ances than do the courts of appeals, have been more dramat­ic­ally affected by policies related to Covid-19.

Offi­cial Sources:

Orders and state­ments from the federal courts are avail­able in the below spread­sheet. We have provided summar­ies of the orders from the circuit courts of appeals and the district courts. Some juris­dic­tions have issued more than two orders, so please refer to the corres­pond­ing website for access to all of the orders gran­ted by each juris­dic­tion.

The Admin­is­trat­ive Office of the U.S. Courts has also compiled orders from some district courts, appeals courts, and bank­ruptcy courts: https://www.uscourts.gov/about-federal-courts/court-website-links/court-orders-and-updates-during-covid19-pandemic  

Immig­ra­tion Courts

The United States Depart­ment of Justice (DOJ) directs the coun­try’s Immig­ra­tion Courts, which fall under the author­ity of the Exec­ut­ive Branch. On Sunday, March 15, an unlikely coali­tion of ICE officers, immig­ra­tion defense attor­neys, and immig­ra­tion judges wrote to the DOJ call­ing for the “emer­gency clos­ure of the nation’s Immig­ra­tion Courts.” Accord­ing to the letter from the unions repres­ent­ing immig­ra­tion lawyers, prosec­utors, and judges – the National Asso­ci­ation of Immig­ra­tion Judges, the Immig­ra­tion and Customs Enforce­ment Profes­sion­als Union, and the Amer­ican Immig­ra­tion Lawyers Asso­ci­ation – the DOJ’s response up to that point, which involved clos­ing only the Seattle Immig­ra­tion Court, “fail[ed] to meet its oblig­a­tions to ensure a safe and healthy envir­on­ment within our Immig­ra­tion Courts.” The groups pledged to work together to address prior­ity matters, like bond hear­ings for persons in deten­tion, using avail­able tech­no­lo­gical tools.

On March 18, the DOJ closed many Immig­ra­tion Courts and post­poned all hear­ings except for those involving detained indi­vidu­als. The DOJ also issued a memor­andum encour­aging judges to use their author­ity to minim­ize in-person hear­ings. Advoc­ates have contin­ued to call for the DOJ to go further by releas­ing detained indi­vidu­als and post­pon­ing all hear­ings.

Offi­cial Sources:

Immig­ra­tion Court Oper­a­tional Status During Coronavirus Pandemic (regu­larly updated): https://www.justice.gov/eoir/eoir-oper­a­tional-status-during-coronavirus-pandemic

DOJ Exec­ut­ive Office for Immig­ra­tion Review Memo, Immig­ra­tion Court Prac­tices During the Declared National Emer­gency Concern­ing The Covid-19 Outbreak (March 18, 2020): https://www.naij-usa.org/images/uploads/news­room/2020.03.18.00.pdf

State Courts

State courts have also adop­ted a wide range of policies, includ­ing grant­ing vary­ing levels of discre­tion to their lower courts to determ­ine policies appro­pri­ate for their regions. For example, New York’s Chief Admin­is­trat­ive Judge issued a statewide order post­pon­ing “all non-essen­tial func­tions of the courts until further notice,” and described the creation of special courts to hear an enumer­ated list of essen­tial matters. The Pennsylvania Supreme Court, on the other hand, initially declared a statewide judi­cial emer­gency but let courts determ­ine “on a district-by-district basis” whether to declare emer­gen­cies in their district. The Pennsylvania court has since ordered statewide clos­ure of all courts except for essen­tial services. 

As of Septem­ber 9, 38 states and the District of Columbia have restric­ted or suspen­ded most in-person proceed­ings and subsequently either mandated or encour­aged the use of remote tech­no­logy for court proceed­ings.

Offi­cial Sources:

Orders and state­ments from state courts are avail­able in the below spread­sheet. We have also provided summar­ies of each of the orders. Some states have issued more than two orders, so please refer to the corres­pond­ing website for access to all of the orders gran­ted by each juris­dic­tion.

For correc­tions or updates, please email janna.adel­stein@nyu.edu